MILITARY REHABILITATION AND COMPENSATION COMMISSION

[2011] AATA 297

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 297

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/0707

VETERANS’ APPEALS DIVISION		)
Re		WILLIAM JENKINS

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date6 May 2011

PlaceBrisbane

Decision The Tribunal refuses the application for an extension of time. 

............Signed...................

Deputy President

CATCHWORDS

PRACTICE & PROCEDURE – extension of time to make application – extension of time in excess of 10 years required – application refused

REASONS FOR DECISION

6 May 2011 Deputy President P E Hack SC    

1. Mr William Jenkins seeks an extension of time, pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth), for the making by him of an application for the review of a decision of the Military Rehabilitation and Compensation Commission made on 10 May 2000. By that decision the Commission refused a claim first made by Mr Jenkins in February 1999 for compensation for hearing impairment, said to have been occasioned to Mr Jenkins during his service in the Australian defence forces between 1953 and 1959.

2. The claim was rejected on the basis that Mr Jenkins had not given timely notice of the claim to the Commonwealth such that, after a lapse of 39 years, the Commonwealth was prejudiced because the medical evidence was that it was impossible to establish whether or not Mr Jenkins had suffered any loss of hearing at the time of his discharge. The letter refusing the claim advised Mr Jenkins of his right to seek a review of the decision in the Tribunal.

3. Despite that Mr Jenkins did not seek such a review until almost 11 years after the ordinary time for the making of an application for review had elapsed.

4. The application for an extension of time was heard on 15 April 2011 and Mr Jenkins subsequently lodged extensive written submissions. Unfortunately, and with respect to Mr Jenkins, his submissions, to a large extent, miss the point. There is no reason to doubt that Mr Jenkins was exposed to loud noise as a member of a coastal gun crew and that, in all likelihood, inadequate precautions were taken. But these matters are not in issue at this juncture. The present application is for a very substantial extension of time to review a decision which determined that the Commonwealth had been prejudiced by a lapse of 39 years in notification of the fact of a claim. 

5. The principles that govern the exercise of the discretion to extend time are well known and need not be repeated. It is sufficient for present purposes to say that the extent of delay, the explanation (if any) for delay, any prejudice to other parties, and the apparent merit (or lack of merit) in the application are all matters that can be relevant to the exercise of the discretion. In my view they are relevant in the present case and each of them tells against the exercise of the discretion favourably to Mr Jenkins.

6. A delay of over ten years is obviously a significant delay. That delay is not explained by Mr Jenkins. In dealing with the merits of the decision the Commission would be obliged to put on evidence to demonstrate any particular prejudice occasioned by the delay of 39 years in making a claim. Its capacity to do so has been further diminished by the further delay in excess of 10 years.

7. Finally, it must be said that, in circumstances where Mr Jenkins has not provided any explanation for the 39 year delay, his case on the merits seems distinctly unpromising.

8. I will then refuse the application for an extension of time.    

   I certify that the 8 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

   Signed:...............Signed....................................................
     Associate

   Dates of Hearing  15 April 2011
   Date of Decision  6 May 2011
   The Applicant was self represented
   Solicitor for the Respondent    Sparke Helmore